Hi Blog. In one of the best articles I’ve ever read in the Japanese media, here we have legal scholar Colin Jones finally connecting the metadots, laying bare how things work in Japanese jurisprudence and law enforcement. It’s an excellent explanation of just how powerful the police are in Japanese society. God bless the Japan Times for being there as an available forum (I can’t imagine any other English-language paper in Japan publishing this) for this research. Arudou Debito in Sapporo

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The Japan Times Tuesday, June 29, 2010
THE ZEIT GIST
No need to know the law, but you must obey it
Colin P.A. Jones tells us why it’s hard to get clear answers when dealing with Japan’s legal system (excerpt)http://search.japantimes.co.jp/cgi-bin/fl20100629zg.html
By COLIN P.A. JONES (excerpt) courtesy of the author and John in Yokohama

A few months ago I met with some Western diplomats who were looking for information about Japanese law — in particular, an answer to the question, “Is parental child abduction a crime?” As international child abduction has become an increasingly sore point between Japan and other countries, foreign envoys have been making concerted efforts to understand the issue from the Japanese side. Having been told repeatedly by their Japanese counterparts that it is not a crime, some diplomats may be confused by recent cases of non-Japanese parents being arrested, even convicted for “kidnapping” their own children. I don’t think I helped much, since my contribution was something along the lines of “Well, it probably depends on whether the authorities need it to be a crime.”

Of course, the very question “Is x a crime?” reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as “The people do not need to know the law, but they should be made to obey it.” This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.

It is also a saying that could provide some insights into why it sometimes seems difficult to get a clear answer about what exactly the law is in modern Japan. I am not suggesting that Japanese police and prosecutors have Confucian platitudes hanging framed over their desks, but knowing the law is a source of power. Being able to say what the law means is an even greater one, particularly if you can do so without being challenged. In a way, clearly defined criminal laws bind authority as much as they bind the people, by limiting the situations in which authorities can act. Since law enforcement in Japan often seems directed primarily at “keeping the peace,” laws that are flexible are more likely to serve this goal…

19 Responses to “Japan Times’ Colin Jones on Japanese enforcement of vague laws: “No need to know the law, but you must obey it””

I didn’t really understand the goal of this article. He says all these bad things about the Japanese system, interspersed with concessions that these sorts of problems are found in every other country as well. What’s his point about Japan, and what does he want people to do?

– Perhaps understand how the system works (and the underlying attitudes of the decisionmakers) and adjust your expectations/strategies accordingly?

That’s what I got out of it. I can’t tell you how many light bulbs went on in my head as I was reading it.

I SECOND the light bulbs comment. I now know that I need to avoid the fuzz more than I ever thought. I am working on a letter to the editor, but what can I really say???? That sucks or some other invective. No, it just means that change has to happen very slowly. So we start slowly and build relationships.

This article is such utter nonsense I don’t even know where to begin. Let’s start with the biggest steaming pile of nonsense:

“Of course, the very question “Is x a crime?” reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as “The people do not need to know the law, but they should be made to obey it.” This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.”

Kidnapping most definitely is a crime in Japan, and the statutory breakdown is quite sophisticated and frankly more sophisticated than most Western jurisdictions. The law broadly differentiates between between kidnapping of a minor (3 months – 7 years), kidnapping for profit (1+ years), kidnapping with the purpose of bringing overseas (2+ years) and kidnapping for ransom (3+ years).

A few months ago I met with some Western diplomats who were looking for information about Japanese law — in particular, an answer to the question, “Is parental child abduction a crime?” As international child abduction has become an increasingly sore point between Japan and other countries, foreign envoys have been making concerted efforts to understand the issue from the Japanese side. Having been told repeatedly by their Japanese counterparts that it is not a crime, some diplomats may be confused by recent cases of non-Japanese parents being arrested, even convicted for “kidnapping” their own children. I don’t think I helped much, since my contribution was something along the lines of “Well, it probably depends on whether the authorities need it to be a crime.”

Seems surprising that Japanese officials (and Colin Jones) are so clueless. There are NUMEROUS cases in Japan, both historical and recent, where parents with custody have been found guilty of kidnapping children. Try searching google for 誘拐罪 親権者 and you’ll get plenty of information in the first 10 searches.

And I find if flabbergasting that Colin Jones as a lawyer is addressing this issue in such a way. Since so much of what he writes on the law outside of family law is so good, I can only chalk it up to yet another instance of his personal experiences clouding his abilities.

Joe and JP – you’re assuming that the Japanese system is somehow bad. I would say it’s not bad (or worse) it’s different.

The US system, for example, rewards denying everything. Unless you are charged with murder or some other capital crime where they are going to try to put you in prison for the rest of your life or kill you you are better off denying everything and having a lawyer who can put together a plea agreement for you. Because of the way the system works except in extreme cases you never want to plead guilty/accept responsability to the charges as filed against you until you have a plea agreement in place.

In the Japanese system they reward taking responsibility/admitting guilt/being (at least publicly) contrite. So much so that people often confess to crimes they didn’t commit because the penalty for doing so is so much less than the penalty when they are found guilty (and, as the article points out, most are although the rate of cases being overturned on appeal has always been disturbing). And the system of detention/bail/etc. is all set up to support that (being able to hold you for 3 weeks without charges for instance).

It really depends on your world view. Do you think you should bring your neighbors a gift when you move in to show you are happy to be living there? Or that you should have to pay a “bribe” to your neighbors when you add a second story onto your own house? A Japanese person likely would because it “keeps the peace”. In the US you’d just do it and to hell with what the neighbors thing – good fences and all that. But the US has a lot more room between it’s neighbors (our yard in Japan has less area than the inside of our home in the US has – and it’s a relatively big suburban yard).

In short I don’t think he’s pointing out flaws in the Japanese system but rather how a different country/culture takes a different point of view about the law and justice.

“the very question “Is x a crime?” reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly”

is itself a reflection of fairly Western views that only Western conceptions of law are like that. Certainly the Tokugawa government spent much time and effort letting everyone know what the laws were. Billboards were put up at major bridges in Edo, for example, announcing new promulgations for all passers-by to see. Village and ward heads were informed by letter and copies of edicts circulated widely throughout the land and were assiduously copied. I am sure that there are plenty of other societies, too, where the idea that people ought to know the law, at least in outline and as it concerns themselves, is an ideal. In fact, with the exponential increase of laws in “modern” and “western” society, the chances are that people in “western” societies today know less of the law than their peers in other nations in earlier ages. Tax law alone in the USA is hundreds of thousands of pages.

Also I find any argument that legal systems are all relative and that it is all a matter of taste and world view utterly unconvincing. Thank god at least a few lawyers and legislators in Japan do too. And so does the United Nations quite often. What is needed is not a blanket appeal to relativism that excuses everybody in the name of “cultural differences,” but a good hard look at specific laws and practices to see what actually happens and whether it is equitable or not. When you rise to the level of the concrete, things tend to be a lot more clear than when you sink to the abstractions of relativistic “world views.”

Curzon, I think you’ve missed the point. Japan can have thirty different flavors of kidnapping, but it doesn’t matter so long as what the elements of the fundamental crime of kidnapping itself remain unclear. It would be as if the US had crimes for murder for hire, felony murder, first-degree murder, etc., but never explained what constitutes the act of murder.

In the case of kidnapping as it relates to so-called parental abductions, the basic question must be: Can a parent be deemed to have “kidnapped” a child over which he or she has legal custody? Clearly the answer cannot be a simple “yes”, or every Japanese parent would be kidnapping his or her child every time the parent takes the child somewhere.

So, under what circumstances does a parent taking his child somewhere constitute the crime of kidnapping? The law is not clear. Indeed, the rule seems to be, “whenever a gaijin parent shows up in Japan and tries to take his own child with him.” And this validates Colin’s thesis, which is that the Japanese legal system criminalizes acts it does not like, regardless of whether those acts qualify as crimes as defined by the law as written.

Joe misses the point as well. Yes, Colin acknowledges that police in every country try to overreach and even abuse their authority, but his point is that the Japanese legal system fails to place adequate checks and restraints on this tendency. That’s a clear, simple, and valid claim.

Jerry: I agree 100%. Many of the rules and customs of a region come about as a result of the unique environment that they live in. To say that the laws of Japan and, say, Iraq, should all be the same as those in the United States or some other Western country is very short-sighted.

To build on Mark’s post (with which I generally agree), one thing I like about Japan is the wide availability of legal treatises and materials. Non-specialized bookstores in the US basically never carry law books other than very general guides like “Divorce for Dummies.” Even to get a general guide to a particular fundamental area of law, one usually has to go on Amazon.com or visit a legal bookstore. In contrast, any halfway sizable Japanese bookstore will have many volumes on contract law, constitutional rights, corporate governance, real estate and a variety of other legal topics.

The system is by no means perfect, and there are injustices all the time, but no system is perfect and no system wipes out injustices. The Japanese system does change significantly as time goes on, mostly for the better, and that’s good enough for me. What the country needs is more and more public pressure (from citizens, politicians and the media) to keep reforming the system in the right direction.

– Which is what I think Colin’s article was getting at, i.e. why public pressure is debilitated by the arbitrariness of power and authority in Japan.

“the legal system seems to lack institutions that act as a significant check”

“what the law actually is seems to be decided by anonymous bureaucrats rather than in the courts or through public debate”

That these kind of statements have been made by a law professor at a prestigious Japanese university–presumably someone with experience, insight and intelligence–says a lot about the Japanese system’s institutionalized, power-serving, anti-democratic ambiguity and the potential for widespread abuse and corruption. Scary.

This article draws a false comparison. The system in the US is even more subject to prosecutorial discretion (that is, guilt decided by bureaucrats rather than the public or the courts) as it is here in Japan. In the US, if the DA does not want to take the case, the case will simply not be brought, absolute, unreviewable power. That’s it. If the DA brings the case, they almost always win, perhaps by a couple percent less than Japan, but still well into ほとんど territory. To say that anonymous bureaucrats determining guilt or what is criminal conduct is somehow a Japanese thing is just wrong. The Japanese system is more accountable in this way than that in the United States: at least there is some oversight in Japan by some prosecutorial board described above.
For example/proof that this is no uniquely or even originally or even mainly Japanese phenomenon, see this article, the first result on a google search I just ran:http://law.jrank.org/pages/1870/Prosecution-Prosecutorial-Discretion.html
Making this some cultural or Confucian issue is a bunch of crap; the pre-Meiji legal codes were completely replaced by a continental system, which brought such innovations as punishments other than death. Also, where the DA may be elected in the US, be careful what you wish for. I know a bunch of former college lacrosse players who made the news for an alleged rape there was no good evidence for whose lives would have been much better if only there had been a truly faceless bureaucrat reviewing the evidence rather than thinking about the polls. Same with the manufactured “child abuse” wave in a single town in California exposed by the innocence project. Can you imagine having Governor Ishihara in charge of whether to bring charges against a foreigner or a native son who were involved in a bar fight? Which do you think makes a better headline? I am deeply thankful that our prosecutors are at least somewhat insulated from public opinion polls – at least there is a chance the prosecutor won’t be a bigot.

Furthermore, in the US, we have such an immense set of criminal law both statutory and in some cases unwritten, and in still other cases (white collar stuff) bureaucratic and over-powered with screwed up incentives, that really there is no way for a reasonable lay person to know whether they will go to jail. If a prosecutor wants you to go to jail in the US, there is a good chance they can figure out how to make it happen, particularly with the Miranda-waived police statement they always get. In the US, it’s “Impossible to know the law, but you must go to jail if the DA says so”.

“The US system, for example, rewards denying everything. Unless you are charged with murder or some other capital crime where they are going to try to put you in prison for the rest of your life or kill you you are better off denying everything and having a lawyer who can put together a plea agreement for you. Because of the way the system works except in extreme cases you never want to plead guilty/accept responsability to the charges as filed against you until you have a plea agreement in place.”

Wow, so true! You read all the time about people charged with crimes in the U.S. who “plead guilty” and like that was their mistake, not the actual crime. Its like you was stupid enough to plead guilty, so now you must do the time for being honest. On the other hand you can be found guilty for lying to an officer or making false statements. I just know after working for the government, you never admit to squat, deny everything and keep your mouth shut.

Mike, it’s a game. In the US prosecutors charge you with the most heinous crime they can think of to scare you. Defense attorneys then agree for you to plead guilty to a lesser crime. The judge then has some level of discretion as to whether to accept the plea agreement or throw it out and force a trial.

I’m not sure how that works in Japan. But if you admit guilt and show contrition they’ll let you off with a lighter sentence – even if you weren’t guilty in the first place…

This quote is from “http://www.japansubculture.com/2008/09/the-town-that-took-on-the-yakuza-from-the-independent/”

But the state still hasn’t made membership of a criminal organisation illegal or given the police the anti-mob tools long considered crucial in other countries: wiretapping, plea bargaining and witness protection, says Joshua Adelstein, author of a new book on the yakuza.

So if this is correct and hasn’t changed since 2008, The legal system in Japan doesn’t allow for plea bargaining. So its kind of an all or nothing situation.

Saturday, July 3, 2010
No charges for Prince Hotels in teacher, injunction snub
Kyodo NewsProsecutors will not charge Prince Hotels Inc. or its officials with violating the lodging business law for refusing to accommodate members of the Japan Teachers Union at some of its Tokyo inns in 2007, according to sources.

The decision has drawn to a close a case that commanded national attention over its implications for the constitutionally guaranteed freedom of assembly, given that the hotel operator’s action was based on its concern about the noise rightist groups threatened to cause with their loudspeaker trucks.

The Tokyo District Public Prosecutor’s Office, which investigated the case, determined that the union’s primary purpose was to use a banquet hall for seminars and that lodging at the hotels was only incidental, the sources said.

The office also decided that the degree of criminality in the act was small after the hotelier argued that while it knew of the illegality of refusing union members’ accommodations, it nonetheless turned down the union’s use of the banquet hall and its members’ lodging out of concern over the possible impact on neighbors, according to the sources…

“However, there is a Confucian saying that is sometimes interpreted as “The people do not need to know the law, but they should be made to obey it.” This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.”